Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 229/01
2002-08-03
In the matter between
ROWANS CONSTRUCTION Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
1ST Respondent
2nd Respondent
3RD Respondent
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J U D G M E N T
EX TEMPORE
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REVELAS J:
1. This is an unopposed application for review of an arbitration
award in terms of which the third respondent was reinstated in
the employ of the applicant who had previously dismissed the
third respondent for alleged misconduct.
1. 1. 2. A dispute for an alleged unfair dismissal was referred to the
Commission for Conciliation, Mediation and Arbitration, (“the
CCMA”), where the first respondent, the arbitrator, held the
dismissal to be unfair on the basis that the third respondent
committed no misconduct whatsoever.
3. The grounds upon which the applicant submits that the award
should be interfered with on review is that the arbitrator who
conducted the arbitration proceedings under the auspices of the
CCMA had made himself guilty of gross misconduct.
4. On the facts before me, which are not in dispute, this submission
appears to be correct. The arbitrator, according to the founding
affidavit, had an “intense discussion" with the third respondent
during a forty minute break taken during the arbitration
proceedings.
5. At no time during this break did the arbitrator have any
discussion with the applicant's representatives and there was no
indication why the second the arbitrator entered into these
discussions.
6. An application was brought for his recusal but the first
respondent dismissed the application without providing adequate
reasons. The arbitrator also made certain statements in his
award which tend to support to the applicant's complaint of
perceived bias.
7. The following are examples thereof and I quote from the award
on page 60 of the record:
"The explanation by the applicant's representative in that the
respondent was very rude and even threatened him during ...
is to my mind, more probable than not. It came out clear
during the arbitration hearing in my presence again, albeit
hearsay."
I quote further:
"The charges of insolence and deliberate reduction of
production are far-fetched in this instance. Let alone the
respondent's failure to state what were the grounds for the
dismissal in the in house hearing."
8. This is factually incorrect simply because there is a record of the
disciplinary hearing where such allegations were put forward.
9. These and other statements to which I am not inclined to quote
in this judgment, demonstrated the second respondent's attitude
to the matter.
10. In the circumstances the arbitration award should be set aside
and referred to the CCMA to be arbitrated by a different
commissioner.
11. I make the following order:
1. The award made by the second respondent is set aside and the
dispute is referred to the CCMA for arbitration before a different
commissioner.
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E. Revelas